Secrecy, Standing, and Executive Order 12,333 – Note by Charlotte J. Wen

In summer of 2013, the National Security Agency (“NSA”) rocketed into headlines when Glenn Greenwald, a reporter at the Guardian, broke a stunning, Orwellian story: pursuant to top-secret court orders, Verizon and other major telephone service providers had granted the NSA blanket access to their American customers’ call records. These companies, Greenwald claimed, were providing the NSA with telephony metadata—general information about each of their customers’ calls, such as phone numbers, call lengths, and call times. In the face of the ensuing public outcry, the American government acknowledged the existence of the telephony metadata program. In doing so, however, it was careful to assert that the program, while secret, was nonetheless constitutional, and that the court orders had been issued pursuant to the Foreign Intelligence Surveillance Act (“FISA”).